Dan Tokaji, Moritz College of Law, Ohio State University:

"The A.P. has this story summarizing the problems that the states had in implementing provisional voting. It quotes my colleague Ned Foley as suggesting that Congress consider repealing HAVA's provisional voting requirement.

My take: I agree that there were serious problems in the way the provisional voting was implemented, particularly the lack of standards for determining which provisional votes should count. But I don't agree with my colleague Prof. Foley's view that Congress should consider getting rid of HAVA's provisional voting requirement, and certainly not at this early stage in the implementation of HAVA. The idea behind provisional voting is to provide a mechanism for votes to be counted when voter's names don't appear on registration rolls. It's a mechanism that has worked well for years in some states, including California.

In a world with perfectly accurate registration lists, we wouldn't need provisional voting. But we don't live in that world, and won't in the foreseeable future. The mandatory statewide registration databases, which will have to be implemented by 2006, may make things better in the long run. But in the short run, it's likely that it will aggravate the problems with registration lists. That makes provisional voting even more important.

What is important is that states enact clear rules, preferably through legislation, on how the provisional voting process — especially counting — should work. Also, as state and county election officials gain greater familiarity with how provisional voting is supposed to work, we can expect the process to improve." [November 16, 2004; Equal Vote has the original post]